Jasbir Singh complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to immediate replace the Nokia set of the complainant bearing model Nokia-1100, IMEI No. 358379002452700 and to pay Rs.20,000/- as compensation for causing mental tension, harassment and inconvenience and also to pay Rs.2500/- as litigation expenses.<br /> 2. The complainant averred in his complaint that the complainant is the consumer of the opposite parties as the complainant had purchased a Nokia-1100 Mobile hand set from the opposite party No. 1 who is sub dealer of Nokia at Kotkapura vide bill No. 1575 dated 11/2/2006 for a sum of Rs.2400/- and the opposite parties 2 to 4 are manufacturer service centre and importer. Since the day of purchase of the set there was a manufacturing defect that it missed the range of mobile towers. The complainant asked the opposite parties to replace the mobile set and handed over the set to the opposite party No. 1 who after about 15 days returned the same with the assurance that the set is working properly but on use of the set by the complainant it revealed that the defect has not been removed. He again approached the opposite party No. 1 with the request to replace the mobile set and at this the opposite party No. 1 kept the set with it and with the assurance that he will either set right the mobile set or will replace the same and asked the complainant to visit after a month. After one moth the complainant reached the opposite party No. 1 and inquired about his mobile set the opposite party No. 1 resiled from receiving any set and further refused to give the replaced mobile set to the complainant. The complainant uptill today has visited the opposite party No. 1 so many times but to no effect and now the opposite party No. 1 has flatly refused to accommodate the complainant and refused to give the mobile rather has misbehaved with the complainant which amounts to clear cut deficiency in services on the part of the opposite parties jointly and severally. The act and conduct of the opposite parties has caused a great mental tension, harassment and loss of business to the complainant for which he claims a sum of Rs.20,000/- as compensation besides Rs.2500/- as litigation expenses. Hence the present complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 29-8-2006 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of notice the opposite party No.1 appeared through Sh. Jatinder Marria Advocate and filed written reply taking preliminary objections that the complainant does not come to this Hon'ble Forum with clean hands, so the complaint be dismissed. The complainant has concealed the material facts from this Forum. The complaint is not maintainable at the present form and the complainant has filed this complaint just to harm and harass and defame the opposite party No. 1. So the complaint be dismissed. On merits the complainant never approached the opposite party nor the opposite party gave any assurance regarding the said mobile phone. At the time of purchase the complainant got checked the said handset and was satisfied from the same. The said handset is not having any guarantee but it has a warranty and the opposite party is ready for remove any defect under the warranty through Nokia Care Centre and this face was already mentioned with the service book of the mobile phone as well as on the packing envelope of the mobile phone and bill dated 11/2/2006. The complainant never approach the opposite party after purchasing the said set nor he made any complaint regarding any defect in the hand set so the question of asking the visit after one month does not arise at all, but if there is any problem in the set the opposite party is still ready to get remove the defect from the Nokia Care Centre, Faridkot as per terms and conditions of the warranty of the said set. The complainant never approach the opposite party after purchasing the said Nokia mobile nor he made any complaint regarding any defect in the handset so the question of refusing to replace the mobiles set does not arise at all. The complainant never approached to the opposite party regarding any complaint of the said set nor the opposite party misbehaved with the complainant. There is no deficiency in service on the part of the opposite party. There is no mental tension, harassment and loss of business on the part of the opposite party. So the complainant has no right to claim a sum of Rs.20,000/- as compensation and Rs.2500/- as litigation expenses. Rather the opposite party is entitled to get Rs.30,000/- on account of harassment, mental agony and defamation caused by the complainant alongwith Rs.5000/- on account of litigation expenses which were occurred due to putting the false litigation by the complainant against the opposite party. <br /> 5. On receipt of notice the opposite party No. 2 to 4 appeared through Sh. S.S.Sidhu Advocate and filed written reply taking preliminary objections that the complainant does not come to this Hon'ble Forum with clean hands, so the complaint be dismissed. The complainant has concealed the material facts from this Forum. The complaint is not maintainable at the present form and the complainant has filed this complaint just to harass the opposite parties. On merits at the time of purchase of the said set the set was in proper working condition and complainant was fully satisfied by its functioning. The handset in question has no guarantee but limited warranty as provided by its manufacture i.e Nokia. The complainant has never approached the opposite party No. 1 regarding any problem in the said handset after its purchase but if there is any problem in the handset the opposite party No. 1 is ready to get it removed from the Nokia care Centre. The complainant has no right to claim any compensation, damages or litigation expenses from the opposite party No. 2 to 4. Hence the complaint is liable to be dismissed. <br /> 6. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, copy of bill No. 1575 Ex.C-2, affidavit of Kirpal Singh Ex.C-3 and closed his evidence. <br /> 7. In order to rebut the evidence of the complainant the opposite party No. 1 tendered in evidence affidavit of Harinder Singh Partner of M/s Ahuja Gift House Ex.R-1 and closed their evidence. Counsel for opposite party No. 2 to 4 not tendered any document and closed their evidence. <br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant submitted that the opposite parties have not returned the cell phone of the complainant which was given for change or repairs having manufacturing defect if any. <br /> 9. Learned counsel for the opposite party No. 1 has submitted that the complainant has never handed over the mobile phone for repairs to the opposite party. There was no manufacturing defect in the mobile phone which once was presented by the complainant to the opposite party No. 1 but at the same time it was returned to him which was working to his satisfaction. If there would have been any defect then the complainant was required to approach service centre at Faridkot. <br /> 10. From the perusal of the affidavit Ex.C-1 of Jasbir Singh and affidavit Ex.C-3 of Kirpal Singh it is made out that both of the witnesses have not pin point the date and time when the mobile set was handed over to the opposite party No. 1 for repairs. As per affidavit of Jasbir Singh complainant para No. 3 the complainant handed over the set to the opposite party No. 1 who after about 15 days returned the same with the assurance that the set is working properly. Complainant has further made statement that defect was not removed. Complainant again approached the opposite party No. 1 with the request to replace the mobile set and at this time the opposite party No. 1 kept the set with it with the assurance that he will either set right the mobile set or will replace the same and asked the complainant to visit after a month. Complainant went to the opposite party No. 1 after a month but they resiled from receiving any set and further refused to give the replaced mobile set to the complainant. He has not mentioned specific dates as to when he approached the opposite party No. 1 again. The mobile set was purchased as per bill Ex.C-2 by the complainant from the opposite party No. 1 on 11/2/2006. So first approach of the complainant can be said within the month of February 2006 and second approach is not mentioned but it may be of March 2006 but Kirpal Singh in his affidavit Ex.C-3 dated 14/3/2007 has deposed that about 10 months back mobile set was given by the complainant to the opposite party No. 1 for repair or change which was having manufacturing defect as per his statement the period comes to be of May 2006. So without specific dates and times it is impossible to gather if ever the complainant has handed over the mobile set to the opposite party No. 1 at the second time. The allegations of the complainant have been rebutted in his affidavit Ex.R-1 by Harinder Singh partner of M/s Ahuja Gift House, Railway Road, Kotkapura. As per his affidavit the complainant just to harm, harass and defame the opposite party have filed this complaint. In fact the complainant got checked the said mobile phone and it was in working condition and complainant was satisfied from the said mobile phone. Complainant never approached the opposite party No. 1 nor the opposite party No. 1 gave any assurance regarding said mobile phone. The mobile phone was checked and found in its working condition to the satisfaction of the complainant. At the time of its purchase the hand set in the complaint is not having any guarantee but it has a warranty and answering opposite party is ready for removal of any defect under warranty if in the handset of the complainant through Nokia Care Centre and this fact already has been mentioned with the service book of the mobile phone as well as on the packing envelope of the mobile phone and bill dated 11/2/2006. The opposite parties have not caused any mental tension or harassment to the complainant. <br /> 11. From above facts and circumstances it is made out that the complainant has failed to establish that he has handed over the mobile phone set to the opposite party No. 1 for its repairs. There is no deficiency of services on the part of the opposite parties to be provided to the complainant. However if there is any breach of terms or misappropriation of mobile set or there is a pecuniary loss to the complainant the complainant could resort to the remedy under Criminal law or Civil law as in the situation mentioned above the matter in dispute is not covered under the provisions of Consumer Protection Act, 1986. So the complaint being devoid of merits is dismissed. No order as to costs due to peculiar circumstances of the case. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 9/8/2007<br /> <br />